Official Opinion 97-19

May 20, 1997

To:

District Attorney Appalachian Judicial Circuit and Magistrate Magistrate Court of Pickens County

Re:

The magistrate court relinquishes its authority to set and amend bonds when an indictment or accusation is filed in the superior court; however, the superior court may delegate its authority, as appropriate, under O.C.G.A. ¿ 17-6-1(h) or O.C.G.A. ¿ 15-1-9.1(e).

This opinion is issued in response to letters of inquiry from both the District Attorney in the Appalachian Judicial Circuit and the Magistrate Court of Pickens County regarding the Magistrate Court's jurisdiction over setting and amending bonds after an indictment or accusation has been issued. For the reasons outlined below, the superior court assumes jurisdiction over bond matters upon the filing of an indictment or an accusation with the clerk of superior court.

Several statutes address the extent of the authority of the magistrate court in setting and amending bonds. Under O.C.G.A. § 17-6-1(f), the magistrate court, sitting as a court of inquiry under O.C.G.A. § 17-7-20, "may by written order establish a schedule of bails." This authority does not, however, include the jurisdiction to set bond in the offenses that are bailable only before a judge of the superior court as outlined in O.C.G.A. § 17-6-1(a).

Official Code of Georgia Annotated § 17-6-18 provides that, "[a]ll bonds taken under requisition of law in the course of a judicial proceeding may be amended and new security given if necessary." Specifically, relevant in that regard is Uniform Rules for Magistrate Courts, Rule 23.4, which states: "The

magistrate court has the authority to amend any bail previously authorized by the magistrate court under the provisions of O.C.G.A. § 17-6-18."

When the magistrate sits as the judicial officer in a first appearance hearing, the magistrate shall, among other responsibilities, inform the accused of his or her variable rights, and "[s]et the amount of bail if the offense is not one bailable only by a superior court judge, or so inform the accused if it is." Uniform Rules of Magistrate Court, Rule 25.1(9).

After a first appearance hearing, a magistrate court may sit as the court of inquiry in the commitment hearing. O.C.G.A. § 17-7-20. There is no requirement that a superior court judge conduct a preliminary hearing. Burson v. State, 183 Ga. App. 647, cert. denied, 183 Ga. App. 905 (1987). "The duty of a court of inquiry is simply to determine whether there is sufficient reason to suspect the guilt of the accused and to require him to appear and answer before the court competent to try him. Whenever such probable cause exists, it is the duty of the court to commit." O.C.G.A. § 17-7-23(a). If there is probable cause to believe the crime is committed, the magistrate court should bind the accused over to the grand jury. Jackson v. State, 225 Ga. 39 (1969).

As a practical matter, once probable cause is found, the commitment form, O.C.G.A. § 17-7-30, and other documents, are forwarded, O.C.G.A. § 17-7-32; 1983 Op. Att'y Gen. U83-38, and the prosecuting attorney then "must prepare an accusatory instrument or otherwise dispose of the charges." 1983 Op. Att'y Gen. U83-38, p. 264. Before the case goes to the grand jury, even though the prosecuting attorney is in possession of the commitment documents, the magistrate court may still set or amend a bond. Nixon v. State, 256 Ga. 261, 262 (1986).

When the grand jury returns an indictment, and it is properly filed by the clerk of the superior court, Zugar v. State, 194 Ga. 285, 286-87 (1942); Wilson v. State, 215 Ga. 446 (1959), at that point, the case moves to the exclusive jurisdiction of the superior court. The filing of a valid accusation also invokes the exclusive jurisdiction of the superior court. O.C.G.A. § 17-7-70. "While [O.C.G.A. § 15-6-8] grants superior courts the power to exercise concurrent jurisdiction with inferior tribunals, 'the court first acquiring jurisdiction of the prosecution retains it to the exclusion of the others, so long as it does not voluntarily and legally abandon it.'" McAuliffe

In summary, once the clerk of the superior court properly files an indictment or once a valid accusation is entered, the superior court has exclusive jurisdiction over the case, including all bond issues, unless the superior court invokes its authority to delegate concurrent jurisdiction to the magistrate court under O.C.G.A. § 17-6-1(h) or O.C.G.A. § 15-1-9.1(e).

Prepared by:

CAROL A. CALLAWAY
Senior Assistant Attorney General

It has been held, though in factual circumstances distinguishable from your inquiry, that "'the grand jury is but an arm of the superior court.'" State v. Byrd, 197 Ga. App. 661, 662 (1990) (quoting Gates v. State, 73 Ga. App. 824, 826 (1946)).